Open Letter

Open Letter to States and Lawyers to Protect Against Voter Suppression
 

June 28, 2021

June 11, 2020

Editorial credit: Orlowski Designs LLC / Shutterstock.com

Candidates already are battling with growing intensity for victory in November. Less visible but equally intense are battles, old and new, over who gets to vote in those elections.

In Florida, for example, citizens by a two-thirds majority passed an initiative restoring voting rights to felons who had completed their sentences and were released from prison, thus restoring voting rights to large numbers of minority citizens. In response, the Florida legislature passed a law prohibiting those newly enfranchised citizens from voting if they still had unpaid fines, which a high percentage still did. In North Dakota, the legislature tried to disenfranchise scores of Native Americans by requiring all voter registrants to have a street address with full knowledge that those who live on reservations typically had no street addresses. Before it was struck down in a blistering opinion by Federal judge Eleanor Ross, Georgia’s “exact-match” voter ID law prevented people from voting if they showed up at the polls with a disparity of any kind – even in punctuation – between the ID they presented and the way their name was listed on official documents used by the state.  

Other weapons are subtler but no less effective. On Super Tuesday last March, voters in minority neighborhoods, cities and towns throughout the State of Texas were confronted with discouragingly long lines as they waited to vote because of a year-long effort that had closed hundreds of polling stations across the State. Many of those that remained had insufficient voting booths. In Wisconsin’s mid-April election, efforts, albeit largely unsuccessful, were made to tamp down voter turnout by requiring people to vote in person despite the COVID-19  quarantine and by delaying distribution of mail-in ballots to those who were entitled to use them. 

These recent actions to suppress the vote reflect a disturbing pattern.  For decades, the Republican party has intentionally implemented a strategy of suppressing voter participation – particularly among minority, low-income and young voters – to win elections.

This electoral strategy is premised on interfering with American citizens’ exercise of their fundamental, constitutional right to vote – our most critical constitutional right because it is “preservative of all other rights.”

Voter suppression is also contrary to the arc of American history’s progressive expansion of the right to vote by eliminating barriers previously imposed on specific groups of Americans due to wealth, race, gender or age. Over time, Constitutional amendments steadily removed barriers that had disenfranchised millions of Americans. Congress participated by, among other things, enacting statutes that prohibited States with long histories of voter suppression from passing new laws without oversight from the Justice Department. Later, it added provisions to facilitate voting by citizens who had difficulty with the English language or who had physical difficulties that interfered with their ability to operate a voting machine. More recently, it enacted laws that facilitated voting by mail for those in the military and those who resided in foreign countries.  

Now, however, President Trump has begun to revitalize voter suppression efforts, revealing his true concerns. Two months ago, Congressional Democrats sought to include provisions to facilitate voting by mail, same-day registration and early voting in the $2.2 trillion Coronavirus Aid, Relief, and Economic Security Act, or CARES Act. Their efforts failed because of Republican led opposition. Later, the President explained in a March 30 interview on Fox & Friends that the Democrats’ proposals “had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.” 

Further, notwithstanding the coronavirus danger posed by in-person voting, the President strongly urged the members of his party to oppose – for partisan reasons – expansion of mail-in ballots to all eligible voters.  “[F]ight very hard when it comes to state-wide mail-in voting,” asserting that it “doesn’t work out well for Republicans.”  He also invoked an unfounded claim that his party has repeatedly used for decades to support unnecessary restrictions on voting, averring a “tremendous potential for voter fraud.”  In fact, “[s]tudies have shown that all forms of voting fraud are extremely rare in the United States.” Even the Commission the President, himself, established to investigate election fraud disbanded in 2018, without making findings of any fraud.

Intentional efforts to interfere with, and prevent, eligible citizens from exercising their fundamental American right to vote, strike at the very heart of our democracy. 

State legislatures, governors and secretaries of state need to scrutinize the election process and protect against any attempts at voter suppression.  Such suppression includes, but is not limited to: closing polling places to create long waiting times, giving false information to prospective voters to discourage or prevent them from voting, imposing unnecessary registration requirements, intimidating voters at the polls, and imposing financial obligations as a prerequisite to voting.

Throughout our history, lawyers have been at the forefront of resistance to voter suppression and the many forms it has taken. Lawyers drafted the constitutional amendments expanding the right to vote that Congress and the States later adopted. Lawyers were at the forefront of efforts to resist voter suppression during the Civil Rights era of the 20th century. Lawyers have led challenges to more recent suppression efforts like those outlined above.  

Once again, we need lawyers to support States in monitoring and acting against such suppression.  And we need lawyers, and concerned citizens, to vigorously oppose any efforts by governmental agencies or private parties to suppress voter turnout in whatever form those efforts appear. In an era when the ability to get to polling places physically may be in jeopardy, we also need lawyers to lead efforts for voting by mail.

Now, we need the States and the lawyers in them to act aggressively, creatively and energetically over the next six months to ensure that the consent of the governed is truly reflected in the outcome of the upcoming November elections. 

“Eternal vigilance is the price of liberty.”

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